Can Genes Be Patented? Appeals Court Will Weigh In Soon

from the and-we-wait dept

It's been just over a year since a district court judge surprised much of the world by saying that you could not patent genes. This was a huge, and very smart ruling, but it certainly upset those who had been patenting genes (or making money off of those patenting genes) for many years. They insisted that this simply couldn't be true at all, and tried to hide behind claims that they weren't really patenting genes at all, but merely the process to separate out the genes. To hear them talk about it, the judge's initial ruling was so far out of left field that the appeals court couldn't possibly uphold it. Well, we'll soon find out. The case against Myriad Genetics and its patenting of the BRCA1 and BRCA2 genes has finally been heard by the Appeals Court, and we're waiting to see if they recognize the absurdity of patenting genes... or if they figure out some way to twist the law (which only allows patents on things made by humans...) into keeping gene patents around. Of course, whoever wins, this case will be appealed to the Supreme Court, who very well may want to weigh in. What's really sad is that a big part of the argument by those who want the lower court ruling overturned is that it will "upset" an entire industry. The real problem, of course, is that an entire industry was built up around these highly questionable patents in the first place.

Reader Comments

Then I'll get my own patent too.

I'm going to patent dementia, and then Myriad is gonna owe me a pile of cash. I did not grant them the right to be demented, or license dementia to them, and yet here they are, being publicly and unapologetically demented. And no, this is not prior art, either.

I do hope SCOTUS references one case I'd heard of they also ruled on involving the patenting of a mouse genome. The only line I remember from the ruling was, "this is not nature's handiwork but his own, and therefore is patentable subject matter."

I would like to think the inverse is true; if it's nature's handiwork, it's not patentable.

The Supreme Court scares me...

"The case against Myriad Genetics and its patenting of the BRCA1 and BRCA2 genes has finally been heard by the Appeals Court, and we're waiting to see if they recognize the absurdity of patenting genes... or if they figure out some way to twist the law (which only allows patents on things made by humans...) into keeping gene patents around. Of course, whoever wins, this case will be appealed to the Supreme Court, who very well may want to weigh in."

These two are the very epitome of backwards "Originalism" or "Contextualism". The problem is, they make opinions that aren't very forward thinking, nor are they grounded in the Constitution. In a few swipes of the pen, they both can force this absurdity to allow businesses to patent genes. Notice that during the business patents fiasco, they both stopped just short of ruling these unconstitutional.

What they will probably do is a very similar ruling. I doubt highly that either of them will truly work to rule this unconstitutional. And this truly scares me that neither of them, being as they're the most influential Justices, actually look for guidance from the Constitution.

This would get even more troublesome under the new "first to file" system replacing the old "first to invent" criteria which could be hard to prove.
The "disrupt an entire industry" argument is, for openers, illegitimate. If you build your business model or industry on a patent on something you didn't really invent, and can't create from "scratch," that's like arguing that you're an American citizen and built your house on the National Mall or within a national park and saying I have to pay you to go there to boot.
By the way, has anyone considered the potential liability if they filed an application under penalty of perjury stating that they had invented and were entitled to a patent on the genes for virulent types of cancer, or on polio or smallpox.

Myriad is much more than this year's hot patent litigation (i.e., this year's successor to Bilski). It's critical for the courts to get this one right. I hope the Justices of the SCOTUS are already doing their research, so they'll be proficient on the details when this case finally reaches them.